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    “Road Rage” Murder Trial: Motion to Dismiss, Grand Jury Testimony

    “Road Rage” Murder Trial: Motion to Dismiss, Grand Jury Testimony

    Walker’s lawyers: “Prosecutors presented materially false and misleading testimony to the grand jury,” move to quash indictment

    Back on February 26 we reported that defense counsel for Joseph Walker–the New Jersey cop who shot and killed Joseph Harvey Jr. in an apparent “road rage” incident in Maryland–had filed a motion to dismiss the first degree murder indictment against him on the grounds that the Grand Jury had been given “materially false and misleading testimony.”  You can see that story here:

    Off-duty “Road Rage” Cop lawyer: Grand Jury given “materially false and misleading testimony”

    Shortly thereafter I received a call from Walker’s lawyers offering to share with me their motion and the accompanying exhibits.  These are not confidential documents, but rather are public documents having been submitted to the trial court. Nevertheless, having them provided directly by counsel was a great convenience in accessing them.

    Over the last few days I have been going through the attached exhibits, which consist mostly of transcripts of witness statements to police, as well as a brief report generated by the MD State Police themselves and a sketch of the shooting scene with the locations of the vehicles and other items.

    Today I wrap up this series of “exposés” with the actual motion itself, as well as the transcript of the actual MD State Trooper testimony presented to the Grand Jury.

    There’s little point to doing an in-depth analysis of these, as the documents speak largely for themselves, so have at them at your leisure.

    First, the motion to dismiss:

    Second the MD State Police testimony to the Grand Jury:

    –-Andrew, @LawSelfDefense


    Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.

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    Comments



     
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    tom swift | March 20, 2014 at 9:13 pm

    I’ve been consistent about reading all the posts and comments

    An admirable display of stamina. Several correspondents supra seem to be mired in very deep mental ruts, and I personally prefer to skip over that stuff en bloc.

    As per Exhibit E, the police account –

    “When he turned around, the two occupants of Harvey’s vehicle were within ten (10) feet of him . . .”

    . . .

    “Walker advised he pulled out his gun and stated walking backwards toward the driver’s door.”

    “Walking backwards” implies that at some prior time he had walked forwards, but that was probably while doing the tire inspection. I imagine he looked at the rear tires, then walked to the front of the Kia, looked at one tire, then passed in front of the van to look at the other tire, ending up a bit forward of his car doors. If he was indeed checking his tires, his movement toward Harvey might be innocent enough.


       
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      Baker in reply to tom swift. | March 20, 2014 at 11:31 pm

      Point well taken.

      I considered that but quite honestly I dismissed it. It’s possible it happened that way but I think the only evidence we have is Walker’s statement. Several cars passed by and I don’t recall any of those witnesses mentioning that Walker was wandering around. They primarily indicate that he was standing close to the door or in the near vicinity of the door with the exception of the one who actually witnessed the shooting and interpreting her interview it sounds like (my conjecture) he was likely close to the front tire.

      Plus, it seems to me highly unlikely that someone would pull over to disengage from a road rage incident without observing the response of the other vehicle. Harvey sees the other party pull over and exit their vehicle. At some time he decides to get out of the vehicle and walk about checking the tires but doesn’t monitor the activity of the individuals. He remains completely unaware of the approach of those individuals until his wife yells out to him.

      This narrative would also require the assumption that his wife would also be oblivious as to whether the pull over to disengage was successful until she decides that perhaps it wasn’t and warns he husband when the the two advancing men are only 10-20 from the van and yells out to her husband.

      All of Walker’s statements may be true and it is possible it played out that way but to me it seems far-fetched without some additional supporting evidence so I dismissed it.


         
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        tom swift in reply to Baker. | March 21, 2014 at 7:54 am

        If Walker really was walking around his van and checking his tires, witnesses wouldn’t have paid much attention, and police might not even find them if they hadn’t witnessed the later excitement, and later come forward on their own after the story made it onto TV. So lack of witnesses for that may not be fatal to Walker’s narrative.

        But, much worse for Walker, witnesses not only failed to notice any tire inspection, but flatly contradict the story about failure to notice Harvey’s approach. Witness B, who claimed to have watched the incident from the time when both cars were playing dodge’em to the time when Harvey was well on his way walking toward Walker’s van, said that Walker was standing, apparently waiting for Harvey to approach. Nothing about tires, nothing about Walker being unaware that Harvey was approaching. (But Witness B is the most skittish of the jurors, and may be the hardest for the prosecution to get into court for testimony.)

        I have to agree to major skepticism about the idea that Walker wouldn’t make it his business to know the location and activities of the driver who had just caused him such annoyance.

        The wife’s failure to notice Harvey is a good point. But I suppose she could plausibly claim to have been occupied with business inside the van – yelling at the kids, perhaps – and so was not even looking outside where Harvey was approaching. Not terribly likely, perhaps, but not impossible.

        I suspect the tire story is going to torpedo Walker, and it’s why I think the M1 charge is not off the table. A hypothetical: Walker was enraged at Harvey, maybe for his use of The Word, and pulled over for a showdown. He watched and waited as Harvey approached, and when he was close, pulled out the gun. He then may have fired a negligent discharge which hit Harvey, and Harvey definitely stopped moving toward Walker. Walker then decided to finish the job and deliberately gave Harvey another two. Pidel survived because he wasn’t close enough for Walker to make a claim of self defense if he shot him too (or maybe Walker simply wasn’t mad at Pidel). Walker then gave the police his cover story about the tires (as an alternative to the more obvious theory about stopping deliberately for a fight), being surprised by Harvey’s appearance up close, and fear for his life and family.

        Obviously, this is speculation (though based on witness statements), and not fact. But, this speculation, if true or if believed to be true, has the premeditation element needed for conviction for first degree.

        Is there room for reasonable doubt? Probably, particularly as the witnesses disagree on a number of points, the big ones being the relative distance between Walker and Harvey, and Pidel’s whereabouts throughout the entire incident. But those bear only indirectly on the big question: did Walker see an opportunity to gun down Harvey, and then believe that with the right story he would get away with it?


     
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    Richard Aubrey | March 21, 2014 at 8:14 am

    tom swift
    In your scenario, who pulled off first?
    Seems to me that if it were Walker, Harvey’s subsequent action would be a major issue. How could Walker have known Harvey would cooperate in the confrontation?
    If Walker’s vehicle was behind Harvey’s when Walker pulled off, then Marvey would have had to notice and do the same, ending up ahead of Walker.
    If Walker’s vehicle was ahead when he pulled off, Harvey, not being under sufficient control to pull behind Walker, would have had to pass Walker and get stopped in the distance between the two vehicles when Walker–hypothetically–began to pull off, plus the fifty yards.
    And if Harvey pulled off first and Walker had the space to pull off fifty yards behind in response, we still have Harvey exiting his vehicle and going back to Walker.

    Were I a juror, I’d be inclined to think Harvey died of stupid, and at worst Walker gave him the opportunity. Which Harvey jumped at.

    Still, we have dueling windows. The prosecution is going to have to assert Walker should have seen the threat immediately, which makes Harvey a maniac of the first water. The defense is going to have to make the threat clear only in the last instants.
    Paradoxically, each of these requirements paints Harvey in a light opposite that which is required to appeal to the jury.
    You’ll note that, even in the picture of Harvey in his Sunday-go-to-meeting clothes, he’s at pains to make sure you know he’s a really, really bad ass. This is likely to be more apparent at ten feet than fifty yards, and we don’t know if it is only his bearing, or if his mouth were involved, that clinched the deal when close to Walker.

    I can see the hypo that Walker wanted to off this guy, but the mechanical requirements depend so much on Harvey jumping in with both feet when almost anybody else would have kept going that Walker’s wish can’t very well be considered operative here.


       
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      Murphy in reply to Richard Aubrey. | March 21, 2014 at 9:00 am

      From Walker’s 911 call:

      “…two people “ran us off the road”

      “Him and the other person in his vehicle, they pulled us off the road.”

      If someone who had already been road-raging me “ran me off the road” or “pulled me off the road”, I don’t think I’d get out and leisurely walk around checking my tires, or even get out of my car and just stand there watching them approach me.

      Walker makes it sound like he saw Harvey as a dangerous threat from the beginning. A reasonable person would certainly see someone who acted as Harvey was alleged to have acted as a dangerous threat from the beginning. Why didn’t Walker try to retreat from the point he realized Harvey was a dangerous threat? A reasonable person would probably think that getting out to confront Harvey after all that had transpired was a deliberate decision by Walker to confront Harvey, not an attempt to exercise his duty to retreat.


       
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      tom swift in reply to Richard Aubrey. | March 21, 2014 at 9:22 am

      In your scenario, who pulled off first?

      Doesn’t matter in the least.

      If Walker was gunning for Harvey, he only had two practical choices – do it while they’re driving, or while they’re on foot.

      How or when they both got on foot doesn’t matter. They both stopped, they both exited their vehicles, and the drama played out as we know.

      The only complication is Walker’s failure to retreat, which by itself may be enough to finish him off.

      Were I a juror, I’d be inclined to think Harvey died of stupid, and at worst Walker gave him the opportunity. Which Harvey jumped at.

      Meaningless. Harvey died of bullet holes, and Walker was the guy with the finger on the trigger. Nobody else.

      If Harvey “jumped at” an opportunity, then Walker set a trap. That’s premeditation, and Walker is toast – first degree, and I doubt the jury will even have to leave the courtroom to decide it. Nothing about Harvey will change that – the definitions of M1, M2, MS, and SD in Maryland don’t say anything about it all being OK if the murdered guy is a dumbass.

      You’ll note that, even in the picture of Harvey in his Sunday-go-to-meeting clothes, he’s at pains to make sure you know he’s a really, really bad ass

      No, I don’t see it. Maybe I’m not enough of a chickenshit to be afraid of half the people I see on the street, but I just don’t see a problem with Harvey. Now if Harvey had a big tatoo on his forehead saying “Born to Hang” or some such pleasantry, I’d think that maybe he had some investment in looking unpleasant, and that in turn might be cause for suspicion. At worst.

      Even if Walker is the type who’s afraid of his own shadow, he can’t go around shooting people because of it. It all depends on what the Reasonable Man would do, and I just don’t believe that the Reasonable Man would decide that Harvey needed shooting because he didn’t look like somebody’s grandmother.

      depend so much on Harvey jumping in with both feet when almost anybody else would have kept going that Walker’s wish can’t very well be considered operative here.

      Still premeditation, and on simple humanitarian grounds I hope that Walker’s defense can come up with a better story than that.


     
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    Richard Aubrey | March 21, 2014 at 10:06 am

    Tom Swift.
    If Walker set a trap, it wasn’t with trip wires. If he purposed to set a trap, it was by thinking of Harvey–correctly–as the kind of asshole Harvey turned out to be. It could only have worked if Walker was right. Which he was. So that might have to be proven, as to how Walker was that smart–what did he have to go on?–and how we know he knew Harvey would jump in with both feet.

    BTW, lose the “afraid” shit. You’re not afraid of half the guys walking down the street? Bet you have a fan club and everything.

    Harvey looks like the kind of guy who thinks he’s a really, really badass and from time to time might try it on somebody. Which could be inconvenient for everybody. Say, did you hear about the road-rage shooting in Maryland?


       
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      tom swift in reply to Richard Aubrey. | March 21, 2014 at 10:35 am

      If he purposed to set a trap, it was by thinking of Harvey–correctly–as the kind of asshole Harvey turned out to be

      So what? That fact that his victim fell into it doesn’t mean it’s no longer a trap. Actually, it makes it a successful trap. And a danger that the jury will get the idea that premeditation was involved.

      BTW, lose the “afraid” shit. You’re not afraid of half the guys walking down the street? Bet you have a fan club and everything.

      Don’t be childish. You’re the one trying to turn Harvey into a boogey-man, not me. The guy’s just not that scary, no matter how much bleating you do about it.


     
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    Richard Aubrey | March 21, 2014 at 11:35 am

    Tom Swift.
    Actually, the prosecution has to prove he’s not only a badass, but a self-appointed, self-conscious badass, who presents himself as a badass, in order to make the case that Walker should have twigged to the badassedness coming his way and retreated.
    ’cause if he’s not a badass, there’s no threat and no DTR.
    Now, afaik, a quick kick in the balls might relieve a guy like that of his baddassedness.
    However, in DTR states–if I get the pitch on this thread–if I’m not backing my family out of the emergency door of the restaurant fast enough, I can’t even parry a blow in case the asshole falls down and hurts himself.
    Because, in MD, prosecutors lack the moral courage, political will and competence to deal with the knock-out g…hey! Look! Road rage!
    I don’t have to get convicted–you can beat the rap, etc.–to get some ink away from Balmore.


       
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      Ragspierre in reply to Richard Aubrey. | March 21, 2014 at 4:23 pm

      “You’re not afraid of half the guys walking down the street?”

      The inside of that poor, old fear-packed skull must be a dark and lonely place.


       
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      tom swift in reply to Richard Aubrey. | March 22, 2014 at 12:00 am

      Actually, the prosecution has to prove he’s not only a badass, but a self-appointed, self-conscious badass,

      The prosecution doesn’t have to prove any of that rubbish, because it’s not relevant. That’s a concept you don’t seem to be able to grasp. Walker is the one on trial, not Harvey, and no wild fantasies about Harvey are going to keep Walker out of prison. Walker’s problems will stem from the fairly evident fact that the vital details of his story (as far as we’ve heard to date) are either unverified by or flatly contradicted by the witnesses. And what the witnesses saw doesn’t add up to a compelling narrative of self defense.

      The defense must offer some story which would justify Walker’s actions (both his failure to retreat, and the shooting death of Harvey) in terms of justifiable self defense against imminent deadly attack. Defense doesn’t have to prove any of it, but there has to be a story of some sort, otherwise all the court will have is one guy who’s dead and another guy who made him that way, and those two add up to homicide.

      The prosecution must prove that the defense story is riddled with holes.

      We haven’t heard that story yet; the trial hasn’t begun. But there are only a few ways it can go, and none of them look terribly promising. The witness statements we’ve seen so far are the problem; they support none of Walker’s vital claims. And that means that Walker was hallucinating, or offered fabrications. Now why would he offer fabrications? One good reason would be if he knew perfectly well that an accurate account wouldn’t sustain his claim of self defense. Stopped to inspect tires? No support. Unaware that Harvey and Pidel were near? Not only no support, but direct contradiction. Showed badge and told the two of them to bugger off? No support. Harvey shot while he was charging Walker? No support; direct contradiction. Walker’s lies are themselves reason to think that he believes himself to be guilty.

      I doubt that Harvey will even enter into the prosecution arguments. They won’t need him. Walker vs. the witnesses may be plenty.


     
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    Richard Aubrey | March 21, 2014 at 8:19 pm

    Rags. Try sticking to the subject.
    Or is this the pound-the-table area of legal argumentation?


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